Wrongful Death Claims: Time Limits and the "Discovery" Rule

All civil actions, including wrongful death actions, have inherent time limits for when they must be filed. These time limits, or "limitations periods," are called statutes of limitations. When the statute of limitations period runs out, you lose your right to sue on your legal claim.

The states each have their own statute of limitations laws pertaining to wrongful death actions – some with only a year, most with two or three years, and some with even more. Speak with a qualified local attorney to determine the law of your jurisdiction and to help determine if your case is still valid as per the applicable statute of limitations rule.

The "Discovery Rule" in Wrongful Death Actions

The running of a limitations period in a wrongful death action has been held to commence when the party bringing suit discovers, or in the exercise of reasonable diligence should have discovered, the cause of the decedent’s death. Some states hold that the right to bring a wrongful death action is fundamental. Courts in these states have held that the limitation period for a wrongful death action begins to run at the death of the injured person unless the application of the limitation period would destroy the cause of action before it reasonably could be discovered. A rule known as the "discovery rule" may be applied in wrongful death actions to determine whether the decedent knew or should have known of the cause of his illness or injury before his death, so as to start the running of the limitations period in the wrongful death action before the decedent's death.

Special Considerations in Wrongful Death Actions

Where a wrongful death action is viewed as a derivative action (that is, arising out of a personal injury action), it may be time-barred by a statute of limitations if the decedent had no claim at the time of death because he or she failed to bring a personal injury claim within the limitations period for that injury. Additionally, in some states, wrongful death actions based on product liability are subject to special limitations periods that start to run on the date of the decedent's death, regardless of the knowledge or lack of knowledge of the party bringing the action concerning the cause of death. In these states, the discovery rule doesn't apply to such suits.

Some states also have what are called "statutes of repose," which prohibit product liability claims where a product has reached a certain age. These rules may come into play in a wrongful death action arising from a defective product, particularly in cases where a product has been off the market for an extended period of time.

Tolling a Statute of Limitations Period

All is not lost if you have run out of time on your statute of limitations period. You have three last resort options to extend the time limit: a) tolling the statute of limitations, b) having it waived by the court, and c) having it waived by the opposing party.

Plaintiffs may attempt request the court to waive the statute of limitations so that their lawsuit can be filed. For the court to waive, however, the situation must meet very specific criteria to merit waiver, and this is very uncommon. It’s also unlikely that a request for waiver sent to the opposing party will be met with a positive response.

On the other hand, tolling (delaying or suspending) of the statute of limitations period is much more common, but whether tolling is acceptable depends on the applicable state law. The discovery rule could be considered tolling in the sense that it delays the running of the statute of limitations. Similarly, there are other situations that warrant tolling.

For example, minor children cannot use up their statute of limitations while they are still minors. Thus, in a wrongful death action by a child for the death of his mother, the child can file the wrongful death action many years later as the statute of limitations would not start to count down until the child turned 18 years old. In general, the courts weigh the positive benefits of tolling – a plaintiff being able to file his or her claims – against the prejudice towards the defendant.